The upshot is that Chief Justice Roberts has become a "swing" justice on the Supreme Courtalong with Justice Kennedy, who has occupied the swing position held by Justice Sandra Day O'Connor until she was replaced by conservative Justice Samuel Alito in 2006. The court now is composed of three solid conservatives and four solid liberals, with Chief Justice Roberts and Justice Kennedy leaning conservative.

Even that mixture makes the current court the most conservative in nearly a century. But it also means that the replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.

The ObamaCare ruling highlights the stakes. Chief Justice Roberts joined the liberal justices in finding that the penalty imposed on individuals who refuse to sign up for government-prescribed health insurance is a permissible tax. But he sided with his fellow conservatives in holding that the mandate to buy insurance itself exceeded Congress's power to regulate interstate commerce. Inactivity, the court held, is not commerce.

By contrast, the liberal justices argued that anything that even indirectly affects commerce (which amounts to everything) can be regulated. With the replacement of one conservative justice by a liberal, congressional power under the Constitution's Commerce Clause will be boundless.

By holding the line in June, then, the conservative majority ensured, at least for now, that the power of the national government remains limited. That portion of the health-care decision continues an important trend in which the court has set boundaries on federal regulatory power that had been erased during the New Deal.

Over the past two decades of its conservative majority, in fact, the court has reined in government power and protected important individual rights in a number of areas, almost always in 5-4 votes divided along conservative/liberal lines.

I wonder what will happen when those who use the Supreme Court as the stick to force compliance actually see Romney’s record in selecting judges. I hope that I am wrong, but I suspect a Roberts is the best we can do under Romney.

3
posted on 07/10/2012 5:23:58 PM PDT
by Ingtar
("As the light begins to fade in the city on the hill")

Anyone hoping that Romney would appoint constitutionalists is probably expecting too much. While his picks would probably be more along the lines of Souter instead of Kagan or Sotomayor, they will inevitably vote with the left.

I would love to be wrong. I would love for him to win and get a Black, young, female equivalent of Thomas on the court and another Alito.

6
posted on 07/10/2012 5:55:36 PM PDT
by CriticalJ
(Suppose you were an idiot. And suppose you were a member of Congress.. But then I repeat myself. MT)

It will be very hard for Romney to betray the base on a Sup Court pick, especially if an opening were to occur in his first term.

Who knows what someone will do once safely on the Sup Court for life, but there are simply too many good conservative judges with a record of conservative jurisprudence for Romney to risk going with a lesser known entity. The base revolted against Bush over Harriet Miers, and Bush was considered (wrongly in many ways) to be a conservative. With Romney, there is no presumption of conservatism, so the base will not take his word for it on a Sup Court pick.

For me, this has to be one area where Romeny doesn’t disappoint. If he wins, then no matter what happens in the Senate he must be willing to nominate and fight for conservative judges.

The author does not understand the difference between a) "Chief Justice John Roberts concluded" and b) "Chief Justice John Roberts delivered the opinion of the Court." A & B are two totally different things.

'A' means Chief Justice Roberts opined (suggested, mused, theorized)

'B' means that the Court held (ruled, judged, decided)

With respect to the constitutionality of the individual mandate under the Commerce clause and the Necessary and Proper clause, Chief Justice Roberts suggested that because inactivity is not commerce, the individual mandate is unconstitutional. None (zero, zip, zilch, nada) of the other justices agreed with him. Therefore, Roberts did not deliver the opinion of the Court.

With respect to the constitutionality of the individual mandate under Congress' taxing powers, a majority of the justices (Roberts, Ginsburg, Breyer, Sotomayor, & Kagan) agreed that the individual mandate's penalty is a tax and is constitutional. Therefore, Roberts delivered the opinion of the Court.

With respect to the constitutionality of the individual mandate under the Commerce clause and the Necessary and Proper clause, Chief Justice Roberts suggested that because inactivity is not commerce, the individual mandate is unconstitutional. None (zero, zip, zilch, nada) of the other justices agreed with him. Therefore, Roberts did not deliver the opinion of the Court.

That's because none of the other justices (zero, zip, zilch, nada) discriminated between taxpayers and non-taxpayers.

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